Tavai v. Walmart Stores, Inc.

• Decision Date: 13 August 2013
• Docket Number: No. 43099–1–II.,43099–1–II.
• Parties: Avrilirene TAVAI and Thomas Tavai, and their marital community, Appellants, v. WALMART STORES, INC., a Delaware entity doing business in the State of Washington with its corporate headquarters in Bentonville, Arkansas, Respondent.
• Court: Washington Court of Appeals

176 Wash.App. 122

307 P.3d 811

Avrilirene TAVAI and Thomas Tavai, and their marital community, Appellants,

v.WALMART STORES, INC., a Delaware entity doing business in the State of Washington with its corporate headquarters in Bentonville, Arkansas, Respondent.

No. 43099–1–II.

Court of Appeals of Washington,

Division 2.

Aug. 13, 2013.

Ronald Gene Meyers, Kenneth B. Gorton, Ron Meyers & Associates PLLC, Lacey, WA, L. Zoe Wild, MacColl Busch Sato PC, Lake Oswego, OR, for Appellant.

Donna M. Young, Lee Smart PS Inc., Seattle, WA, for Respondent.

QUINN–BRINTNALL, J.

[176 Wash.App. 125]¶ 1 In a slip-and-fall premises liability case, the plaintiff ordinarily must prove that the defendant had notice of the dangerous condition that caused the fall. Under the limited “self-service” exception to this requirement, notice need not be shown if the dangerous condition is continuous or foreseeably inherent in the nature of the defendant's business or mode of operation. The appellant here slipped on a wet floor in a Walmart store about 15 feet away from a check-out counter. Because the appellant failed to provide evidence that Walmart had notice of the wet floor or a condition resulting in a continuous danger of the floor being wet in the area where she fell, the trial court properly dismissed the case on summary judgment. We affirm.

FACTS

¶ 2 Avrilirene Tavai was shopping at a Walmart store on February 2, 2008. About 15 feet away from a check-out counter, Tavai slipped on the floor and fell. Tavai noticed water on the floor where she fell. Tavai went to customer service and filled out an accident report.

¶ 3 Tavai's teenage daughter had accompanied Tavai on the shopping trip, but she was some distance ahead of her when Tavai fell. Tavai's daughter said she had not noticed any water on the floor when she walked through the area where her mother had fallen. She first noticed water on the floor after helping her mother up. She did not see any items in the area indicating where the water came from.

¶ 4 An assistant manager for Walmart investigated the area where Tavai fell. The manager saw a small area of water on the floor. The manager did not see any debris, including water bottles or cups, in the area where Tavai fell. The manager did not notice any wet footprints or tracks around the area. None of the employees the manager spoke to saw Tavai fall or knew about the water on the floor. Surveillance video did not show the area where Tavai fell. The manager was unable to determine how the water got on the floor.

[176 Wash.App. 127]¶ 5 Tavai sued Walmart on August 16, 2010 for injuries suffered from the fall. Walmart moved for summary judgment dismissal, arguing that Walmart did not have notice of the wet floor and that the “self-service” exception to the notice requirement did not apply. The trial court granted Walmart's motion. Tavai moved for reconsideration, which the trial court denied. Tavai appeals from the subsequent dismissal of her case.

ANALYSIS

Standard of Review and Premises Liability Standard

¶ 6 Summary judgment is proper if no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c). To succeed on a summary judgment motion, the moving party must first show the absence of an issue of material fact. Ingersoll v. DeBartolo, Inc., 123 Wash.2d 649, 654, 869 P.2d 1014 (1994). The burden then shifts to the nonmoving party to set forth specific facts showing a genuine issue for trial. Ingersoll, 123 Wash.2d at 654, 869 P.2d 1014. A defendant may move for summary judgment on the ground that plaintiff lacks competent evidence to support her claim. Young v. Key Pharms., Inc., 112 Wash.2d 216, 226, 770 P.2d 182 (1989). When considering a summary judgment motion, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000). On appeal of summary judgment, the standard of review is de novo, and we perform the same inquiry as the trial court. Lybbert, 141 Wash.2d at 34, 1 P.3d 1124.

¶ 7 A cause of action for negligence requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 127–28, 875 P.2d 621 (1994). In a premises liability action, a land possessor's duty of care is governed by the entrant's commonlaw status as an invitee, licensee, or trespasser. Tincani, 124 Wash.2d at 128, 875 P.2d 621. Walmart does not dispute that Tavai was an invitee. Our Supreme Court has adopted the view of the Restatement (Second) of Torts as to a landowner's duty of care to an invitee. Curtis v. Lein, 169 Wash.2d 884, 890, 239 P.3d 1078 (2010). The Restatement provides,

¶ 8 Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts § 343 (1965).

the “Self–Service” or Pimentel Exception

¶ 9 In general, the duty to exercise reasonable care to protect invitees from harm is triggered upon the invitee's showing that the premise owner had actual or constructive notice of the hazardous condition. O'Donnell v. Zupan Enters., Inc., 107 Wash.App. 854, 858, 28 P.3d 799 (2001), review denied,145 Wash.2d 1027, 42 P.3d 974 (2002). Such “notice need not be shown, however, when the nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.” Pimentel v. Roundup Co., 100 Wash.2d 39, 49, 666 P.2d 888 (1983). This is the “self-service” or Pimentel exception. O'Donnell, 107 Wash.App. at 858, 28 P.3d 799. The rationale for the rule is that “ ‘when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves.’ ” Pimentel, 100 Wash.2d at 47–48, 666 P.2d 888 (quoting Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420–21, 494 P.2d 839 (1972)). Tavai contends that the Pimentel exception applies and precludes summary judgment.

¶ 10 “Pimentel is a limited rule for self-service operations, not a per se rule,” and is “limited to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation.” Wiltse v. Albertson's Inc., 116 Wash.2d 452, 461, 805 P.2d 793 (1991). Self-service areas include locations “where customers serve themselves, goods are stocked, and customers handle the grocery items, or where customers otherwise perform duties that the proprietor's employees customarily performed.” O'Donnell, 107 Wash.App. at 859, 28 P.3d 799. But the “Pimentel rule does not apply to the entire area of the store in which customers serve themselves.” Ingersoll, 123 Wash.2d at 653, 869 P.2d 1014.There must be a relation between the hazardous condition and the self-service mode of operation of the business. Carlyle v. Safeway Stores, Inc., 78 Wash.App. 272, 277, 896 P.2d 750,review denied,128 Wash.2d 1004, 907 P.2d 297 (1995).

¶ 11 Case law illustrates the limited reach of the Pimentel exception. In Ingersoll, the plaintiff slipped and fell in the common area of the Tacoma Mall. 123 Wash.2d at 650, 869 P.2d 1014. On appeal, the plaintiff argued that the Pimentel exception precluded summary judgment. Our Supreme Court rejected her argument. The court reasoned that the plaintiff “failed to produce any evidence from which the trier of fact could reasonably infer that the nature of the business and methods of. operation of the Mall are such that unsafe conditions are reasonably foreseeable in the area in which she fell.” Ingersoll, 123 Wash.2d at 654, 869 P.2d 1014. The record disclosed “only that there is more than one food-drink vendor service in the Mall, that some such vendors do not provide seating and that some patrons carry the products to benches for consumption.” Ingersoll, 123 Wash.2d at 654, 869 P.2d 1014. This evidence was insufficient to withstand a motion for summary judgment.

¶ 12 Arment v. Kmart Corp., 79 Wash.App. 694, 902 P.2d. 1254 (1995), is similar. There, the plaintiff slipped on a drink spill in the menswear department of the store. Arment, 79 Wash.App. at 695, 902 P.2d 1254. The plaintiff provided evidence showing that the store operated a restaurant in the same general area with a drink dispenser. Arment, 79 Wash.App. at 697, 902 P.2d 1254. Division One of this court affirmed the summary judgment dismissal of the case because the plaintiff did not provide sufficient evidence that Kmart encouraged patrons to consume food or drink throughout the store. Arment, 79 Wash.App. at 696, 699, 902 P.2d 1254. In distinguishing the case from a Kansas case, this court reasoned that the plaintiff failed to produce evidence showing that Kmart allowed or encouraged patrons to remove food and drink from the in-store cafeteria and consume it in the retail area. Arment, 79 Wash.App. at 699–700, 902 P.2d 1254.

¶ 13 Likewise, Division Three of this court affirmed a summary judgment dismissal in Carlyle, 78 Wash.App. at 274, 896 P.2d 750. There, the plaintiff slipped on a shampoo spill in the coffee section of a Safeway store. Carlyle, 78 Wash.App. at 274, 896 P.2d 750. This court rejected the plaintiff's argument that there was an issue of fact under the Pimentel exception on whether the leaking shampoo bottle was reasonably foreseeable. Carlyle, 78 Wash.App. at 276...